United States v. Rebollar Osorio

• Court: Court of Appeals for the First Circuit
• Decided: May 5, 2026
• Docket: 24-2043
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 24-2043

UNITED STATES,

Appellant,

v.

ALBERTO REBOLLAR-OSORIO,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

[Hon. Nancy Torresen, U.S. District Judge]

Before

Barron, Chief Judge, Howard and Kayatta, Circuit Judges.

Brian S. Kleinbord, Assistant United States Attorney, with whom Craig M. Wolff, Acting United States Attorney, was on brief, for appellant. Jamesa J. Drake, with whom Drake Law LLC was on brief, for appellee.

May 5, 2026 BARRON, Chief Judge. In this case, we must resolve the

government's challenge to the dismissal of an indictment that

charged Alberto Rebollar Osorio ("Rebollar Osorio") with

possessing a firearm as an "alien" "illegally or unlawfully in the

United States" in violation of 18 U.S.C. § 922(g)(5)(A). In that

ruling, the United States District Court for the District of Maine

determined that, under New York State Rifle & Pistol Ass'n v.

Bruen, 597 U.S. 1 (2022), § 922(g)(5)(A) violates the U.S.

Constitution's Second Amendment because Rebollar Osorio is among

"the people" protected by that Amendment, and the government failed

to carry its burden to show that, as applied to him, that statute

is consistent with our nation's "tradition of firearm regulation."

We reverse, largely for the reasons set forth in United States v.

Vizcaíno-Peguero, No. 23-1932, slip op. (1st Cir. May 5, 2026).

I.

In March 2024, a grand jury in the District of Maine

charged Rebollar Osorio with one count of knowingly possessing a

firearm as an "alien" "illegally or unlawfully in the United

States" in violation of 18 U.S.C. §§ 922(g)(5)(A) and 924(a)(8).

The former measure makes it unlawful for a person who is an alien

"illegally or unlawfully" in this country to possess a firearm.1

1 We use the term "alien" in this opinion for consistency with the statutory language.

- 2 - Id. § 922(g)(5)(A). The latter measure provides for up to 15 years

imprisonment for "knowingly violat[ing]" § 922(g). Id.

§ 924(a)(8).

Rebollar Osorio moved to dismiss the indictment on the

ground that § 922(g)(5)(A) violates the Second Amendment right to

keep and bear arms both on its face and as applied to him. The

government opposed his motion.

Courts confronting Second Amendment challenges must

apply the two-step Bruen framework. United States v. Minor, 165

F.4th 616, 621 (1st Cir. 2026). The first step focuses on the

text of the Second Amendment, which provides that "[a] well

regulated Militia, being necessary to the security of a free State,

the right of the people to keep and bear Arms, shall not be

infringed." U.S. Const. amend. II. If the challenged regulation

falls within the "plain text" of that Amendment, then the court

must proceed to the second step, which focuses on this country's

history and tradition of firearms regulation. Minor, 165 F.4th at

621 (quoting Bruen, 597 U.S. at 17). At that step, "the government

bears the burden of demonstrating that the challenged regulation

is consistent with this Nation's historical tradition of firearm

regulation." Id. (citation modified).

In opposing Rebollar Osorio's motion to dismiss his

indictment, the government contended, with respect to Bruen's

first step, that Rebollar Osorio, as an alien illegally or

- 3 - unlawfully in the United States, is not among "the people"

protected by the Second Amendment. The government argued in the

alternative that, even if Rebollar Osorio is among "the people" to

whom that Amendment refers, his challenge to § 922(g)(5)(A) fails

at Bruen's second step. Here, the government argued that the

statute, as applied to Rebollar Osorio, is consistent with our

nation's history of firearms regulation.

The District Court granted Rebollar Osorio's motion to

dismiss his indictment based on his as-applied challenge to

§ 922(g)(5)(A). It first concluded, based in part on the Supreme

Court's decision in United States v. Verdugo-Urquidez, 494 U.S.

259, 265 (1990), that Rebollar Osorio is among "the people" to

whom the Second Amendment refers because he "has established a

'sufficient connection with this country to be considered part of

[the national] community.'" (Alteration in original.) The

District Court then proceeded to Bruen's second step. There, it

reviewed the historical evidence that the government had advanced

to defend § 922(g)(5)(A).

The government pointed to founding-era laws that it

contended conditioned the right to bear arms on allegiance to the

United States and colonial laws that it contended prohibited the

arming of Native Americans and the possession of firearms by

Catholics. The District Court determined, however, that the

government had waived its right to rely on these asserted

- 4 - precursors to § 922(g)(5)(A) because it had failed to "produce[]"

those laws and relied solely on secondary sources referring to

them.

The District Court further concluded that the

government's remaining asserted precursors -- the English Bill of

Rights, early American caselaw, and amendments proposed during the

ratification debates that would have guaranteed the right to bear

arms to "citizens" -- were not "distinctly similar" or "analogous

enough" to § 922(g)(5)(A) "to establish a comparable tradition of

firearms regulation." Accordingly, the District Court concluded

that the government had not carried its burden under Bruen and

dismissed the indictment against Rebollar Osorio.

The government timely appealed.

II.

Our review is de novo as to each step of the Bruen

framework. See Minor, 165 F.4th at 621. In challenging the

District Court's ruling regarding Bruen's first step, the

government relies on the fact that the Supreme Court has repeatedly

referred to "citizens" as possessing the Second Amendment right to

keep and bear arms. E.g., District of Columbia v. Heller, 554

U.S. 570, 595 (2008); McDonald v. City of Chicago, 561 U.S. 742,

768 (2010); Bruen, 597 U.S. at 9; United States v. Rahimi, 602

U.S. 680, 691 (2024). The government reasons that these repeated

- 5 - references show that the "plain text" of that Amendment covers

only "citizens" and so, necessarily, not individuals like Rebollar

Osorio, who is an alien illegally or unlawfully in this country.

As we explained in Vizcaíno-Peguero, however, if a

Second Amendment challenge to § 922(g)(5)(A) fails at the second

step of the Bruen framework, there is no reason to resolve the

first-step question of whether aliens in this country illegally or

unlawfully are among "the people" to whom the Second Amendment

refers. See Vizcaíno-Peguero, slip op. at 8-10. And, as we will

next explain, Rebollar Osorio's challenge fails at the second step

just as the challenge in Vizcaíno-Peguero did. See id. at 29.

So, we proceed directly to Bruen's second step.

In Rahimi, the Supreme Court explained that the focus of

the second-step inquiry is on "[w]hy and how the [challenged]

regulation burdens the right." 602 U.S. at 692. We held in

Vizcaíno-Peguero, after accounting for each of those dimensions of

the inquiry, that the government had met its burden to show that

§ 922(g)(5)(A) fits comfortably within the tradition of firearm

regulation. Vizcaíno-Peguero, slip op. at 29. We relied there on

the evidence that the government advanced concerning the English

common-law tradition, colonial measures disarming Native Americans

and Catholics, and founding-era laws conditioning the right to

bear arms on an individual's allegiance to the sovereign. Id. at

14-16.

- 6 - In asking us to reach a different conclusion in his case,

Rebollar Osorio first contends that the right to keep and bear

arms that the Second Amendment secures is broader than the

assertedly analogous right that the English Bill of Rights

secured.2 It therefore follows, he argues, that the Second

Amendment "repudiated" the English practice of "categorically

disarming out-groups." But, while "courts must be careful" when

evaluating the import of English common-law practices, Bruen, 597

U.S. at 35, the Second Amendment "codified a right inherited from

our English ancestors," id. at 20 (quoting Heller, 554 U.S. at

599). The English tradition thus has been essential to our

understanding of that "pre-existing right." Id. (quoting Heller,

554 U.S. at 592); see also Heller, 554 U.S. at 592-93 (surveying

English history). So, even though the founding generation "largely

eliminated governmental authority to disarm political opponents,"

Rahimi, 602 U.S. at 694, what matters for present purposes is that

the authority to "ban[] the possession of guns by categories of

persons thought by a legislature to present a special danger of

misuse," id. at 698, was still accepted at that time, cf. Heller,

554 U.S. at 626 (recognizing "longstanding prohibitions" on

firearm possession by certain groups). We therefore are not

The English Bill of Rights declared "[t]hat the Subjects 2

which are Protestants, may have Arms for their Defence suitable to their Conditions, and as allowed by Law." 1 W. & M. c. 2, § 7, in 3 Eng. Stat. at Large 417 (1689).

- 7 - persuaded by Rebollar Osorio's attempt to dismiss as irrelevant

the English history that the government invokes and that we relied

on in Vizcaíno-Peguero, slip op. at 14, 17-19.

Rebollar Osorio next takes aim at the government's

reliance on what he describes as "oddball colonial laws": Virginia

disarming a man named Richard Barnes in 1624; Massachusetts

disarming Anne Hutchinson, a preacher, in the late 1630s; and New

Jersey disarming Moravians, a pacifist denomination of

Protestants, during the Seven Years' War. See Range v. Att'y Gen.,

69 F.4th 96, 122-24 (3d Cir. 2023) (Krause, J., dissenting)

(discussing examples), vacated sub nom., Garland v. Range, 144

S. Ct. 2706 (2024) (mem.). He maintains that these isolated

incidents of disarmament "over 150 years before the Second

Amendment was ratified" cannot help us understand the tradition of

firearm regulation in this country.

The government does not rely only on these three

incidents, however. It also points to the English common-law

tradition, colonial laws prohibiting the sale of firearms to Native

Americans, and colonial- and founding-era measures conditioning

firearm possession on loyalty oaths. We thus fail to see why these

historical examples should be given no weight in undertaking the

inquiry required at Bruen's second step.

Rebollar Osorio next challenges the government's

reliance on colonial Virginia's disarmament of Catholics. He does

- 8 - so on the ground that the government "failed to identify the law

with precision," seemingly referring to the absence of a citation

to the original statute. But, in addition to the fact that the

government did provide the citation in its reply brief, it is clear

from Rahimi that secondary sources may be considered, see Rahimi,

602 U.S. at 695-96 (considering secondary sources).

Rebollar Osorio also argues that the historical evidence

on which the government relies is inapposite along the "why"

dimension of Bruen's second-step inquiry. In his view, the ban in

§ 922(g)(5)(A) is aimed at "gun violence[,] aliens who behaved

dangerously[,] and a concern about lawbreaking." By contrast, he

asserts, the historical regulations cited by the government were

"racist" measures aimed at the "preservation of a ruling class."

As we explained in Vizcaíno-Peguero, however, the

relevant history reveals a longstanding concern about sovereign

control over individuals who, although owing a temporary and local

allegiance to this country, which subjects them to laws like

§ 922(g)(5)(A), belong to groups presumed allegiant to a foreign

power and have not formally recognized the government's authority.

Vizcaíno-Peguero, slip op. at 17-20. And, we further explained

there, § 922(g)(5)(A) fits within that tradition as a measure that

aims to reduce the threat posed by a group similarly lacking a

regulable relationship with the government. Id. at 20-21.

- 9 - Moreover, we recognized in Vizcaíno-Peguero that some of

the measures that establish this tradition would now be

unconstitutional on grounds other than the Second Amendment. But

we explained in doing so that this fact does not disqualify such

measures from serving as historical analogues for Second Amendment

purposes. See id. at 26-27. Nor, we note, does Rebollar Osorio

claim that there is any reason to think that these regulations

violated the Second Amendment right to keep and bear arms when

they were in effect.

Finally, Rebollar Osorio turns to the "how" dimension of

the second-step inquiry. Here, he contends that the challenged

measure effects a permanent, categorical ban on possession for a

broad class of people. But, he argues, there is no historical

support for imposing a ban of that kind.

As we explained in Vizcaíno-Peguero, the government does

not need to show a "distinctly similar" historical analogue to

§ 922(g)(5)(A). Vizcaíno-Peguero, slip op. at 14 (quoting Bruen,

597 U.S. at 26). It instead needs to identify only "relevantly

similar" precursors that, when considered together, establish a

history and tradition of firearms regulation that encompasses that

measure. Id. (quoting Bruen, 597 at 29). The reason is that

§ 922(g)(5)(A) implicates a novel societal concern, as it was

enacted against the backdrop of our modern immigration framework,

which did not exist until the late 19th century. Id. at 18.

- 10 - Moreover, as we further explained in Vizcaíno-Peguero,

§ 922(g)(5)(A) is "relevantly similar" to the colonial- and

founding-era measures disarming Catholics and British Loyalists in

"how" it burdens the right to bear arms. Id. at 22-25. After

all, it too allows individuals subject to the restriction the

opportunity to restore their right to possess firearms by signaling

allegiance and entering the requisite relationship to the relevant

government authority in the manner prescribed by that authority.

Id. at 24-25.

III.

For the foregoing reasons, we reverse the decision of

the District Court and remand for further proceedings consistent

with this opinion.

- 11 -